Opinion
CV176084805S
08-07-2018
Patricia SIMONS v. CHARLOTTE HUNGERFORD HOSPITAL
UNPUBLISHED OPINION
OPINION
PECK, JTR
The defendant, Charlotte Hungerford Hospital, moves to dismiss the plaintiff, Patricia Simons’ complaint on the grounds that (1) the plaintiff’s complaint sounds in medical malpractice, and the plaintiff failed to comply with General Statutes § 52-190a, and (2) venue is improper. In her objection, the plaintiff argues that she was not required to comply with § 52-190a because her complaint sounds in ordinary negligence, not medical malpractice. The motion as it relates to § 52-190a has been fully briefed by the parties and was argued at short calendar on April 30, 2018.
On the issue of venue, the defendant argues that the plaintiff’s complaint was incorrectly made returnable to the judicial district of Hartford when it should have been returnable to the judicial district of Litchfield. General Statutes § 51-351 states as follows: "No cause shall fail on the ground that it has been made returnable to an improper location." "[T]he legislature’s intention in enacting § 51-351 was to provide the remedy of transfer rather than dismissal in [cases of improper venue]." Sprague v. Commission on Human Rights & Opportunities, 3 Conn.App. 484, 487, 489 A.2d 1064, cert. denied, 196 Conn . 804, 492 A.2d 1240 (1985). Further, improper venue has been removed from the Practice Book as a ground for a motion to dismiss. See Practice Book § 10-30. Because improper venue is not a proper basis for motion to dismiss, it is not further addressed in this memorandum. The plaintiff did not address the issue of venue in her opposition memorandum and no argument was presented on this issue by either party when it was heard by the court.
"A motion to dismiss ... properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court ... A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 650, 974 A.2d 669 (2009). "When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light." (Internal quotation marks omitted.) Id., 651. "In contrast, if the complaint is supplemented by undisputed facts established by ... undisputed evidence ... the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts ... and need not conclusively presume the validity of the allegations of the complaint." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Id., 651-52.
The court notes that the defendant submitted the plaintiff’s hospital record along with its reply brief and referenced it at oral argument. Because there was no objection made by the plaintiff, the court assumes the contents of the record to be undisputed.
Section 52-190a(a) "[requires] the plaintiff in a medical malpractice action to obtain the written opinion of a similar health care provider that there appears to be evidence of medical negligence and to attach the opinion to the certificate of good faith to be filed with the complaint." (Internal quotation marks omitted.) Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 18, 12 A.3d 865 (2011). The failure to file a written opinion letter implicates personal jurisdiction; Morgan v. Hartford Hospital, 301 Conn. 388, 401-02, 21 A.3d 451 (2011); and is grounds for dismissal of the complaint. General Statutes § 52-190a(c).
Section 52-190a(a) provides in relevant part: "No civil action or apportionment complaint shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action or apportionment complaint has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. The complaint, initial pleading or apportionment complaint shall contain a certificate of the attorney or party filing the action or apportionment complaint that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant or for an apportionment complaint against each named apportionment defendant. To show the existence of such good faith, the claimant or the claimant’s attorney, and any apportionment complainant or the apportionment complainant’s attorney, shall obtain a written and signed opinion of a similar health care provider, as defined in section 52-184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion ... The claimant or the claimant’s attorney, and any apportionment complainant or apportionment complainant’s attorney, shall retain the original written opinion and shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate."
A complaint sounds in medical malpractice and not ordinary negligence when "(1) the defendants are sued in their capacities as medical professionals, (2) the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship, and (3) the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment." Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, 358, 764 A.2d 203, appeal dismissed, 258 Conn. 711, 784 A.2d 889 (2001).
As to the first element of the Trimel test, a defendant hospital is capable of "being sued in its capacity as an institution providing medical care." See Boone v. William W. Backus Hospital, 272 Conn. 551, 563, 864 A.2d 1 (2005). In the present case, although the plaintiff argues that she is suing the hospital in its capacity as an employer and not as a medical professional, she has provided no authority or support for this argument. To the contrary, in Cotton v. Benchmark Assisted Living, LLC, Superior Court, judicial district of Danbury, Docket No. CV-10-6002180-S (July 2, 2010, Marano, J.) (50 Conn.L.Rptr. 246, 247-48), the trial court found that the plaintiff had sued the defendant as a medical professional in light of the plaintiff’s allegations that the defendant owned, operated, and managed an assisted living facility, and that the plaintiff was injured by the defendant’s employee, even though the complaint also alleged that the defendant had negligently hired, supervised, and trained the employee. In the present case, the plaintiff similarly alleges that the defendant owned, operated, managed, maintained, possessed, and/or controlled a hospital facility, and that she was injured by the negligence of one of the defendant’s agents, servants, and/or employees. Accordingly, the defendant is being sued in its capacity as a medical professional.
As to the second element, a claim is of a "specialized medical nature" when "it directly involves the plaintiff’s medical condition ..." Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569, 577, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009); see also Labonia v. Whitney Manor Convalescent Center, Inc., Superior Court, judicial district of New Haven, Docket No. CV-14-6045534-S (February 16, 2016, Fischer, J.) (61 Conn.L.Rptr. 808, 810) ("negligence is of a specialized medical nature where a health care provider neglects to take precautions that are necessary to address a patient’s medical condition" [internal quotation marks omitted] ). In Perry v. Valerio, 167 Conn.App. 734, 735-36, 143 A.3d 1202 (2016), the plaintiff sued her physical therapist after she fell and injured herself during a physical therapy session. The Appellate Court noted that the allegations "directly involve[d]" the plaintiff’s medical condition; id., 743; as well as "the appropriate medical standard of care for supervising, monitoring, and supporting [the plaintiff] ..." (Emphasis added.) Id. The court thus concluded that the alleged negligence was of a specialized medical nature. Id.
In the present case, the plaintiff alleges that the defendant knew or should have known that the plaintiff was suffering from dementia. The plaintiff further alleges that the defendant knew that she "was at a risk for falling," but nevertheless "failed to properly monitor, supervise and observe the plaintiff at all times." Pl.’s Compl. ¶ 6. The plaintiff’s complaint implicates the standard of care required for an emergency room patient who is suffering from dementia, and thus, directly involves the plaintiff’s medical condition. The alleged negligence was, therefore, of a specialized medical nature and arose out of the medical professional-patient relationship between the plaintiff and the defendant.
The Appellate Court’s decision in Perry v. Valerio likewise informs the court’s analysis of the third prong of the Trimel test. In that case, the Appellate Court held that the alleged negligence was substantially related to the plaintiff’s medical diagnosis and involved the exercise of medical judgment because "[t]he allegations ... suggest that [the defendant] was required to assess [the plaintiff’s] physical capabilities in determining how to support her while ambulating and in determining the degree of supervision and support necessary for [the plaintiff] to safely ambulate ..." Perry v. Valerio, supra, 167 Conn.App. 743; see also Consiglio v. Streeto, Superior Court, judicial district of New Haven, Docket No. CV- 06-5001967-S (March 24, 2009, Lager, J.) (47 Conn.L.Rptr. 387, 389) (finding that complaint sounded in medical malpractice because "any conclusion as to what would constitute ‘appropriate supervision’ or ‘appropriate assistance’ necessarily would rest on a determination as to what [the plaintiff] ... would have required based on his underlying medical conditions and the treatment the hospital was providing him"). Analogously, in the present case, the plaintiff’s allegations suggest that the defendant was required to assess the plaintiff’s physical and mental capabilities and determine the degree of supervision, monitoring, and observation that she required while awaiting further treatment. The plaintiff’s medical record confirms that she was admitted to the emergency department for confusion and that she has a history of chronic dementia. Further, the complaint plainly alleges that the plaintiff was in the defendant’s care, and that the defendant knew or should have known that a failure to properly supervise the plaintiff would result in her injury. Given the allegations in the complaint, as well as the plaintiff’s symptoms and medical history, any decision to leave the plaintiff unsupervised reflected an exercise of medical judgment that was substantially related to her medical diagnosis.
Based on the foregoing analysis, all three elements of the Trimel test are satisfied. Therefore, the plaintiff’s complaint sounds in medical malpractice, not ordinary negligence. As such, the plaintiff was required to file a certificate of good faith with the complaint, and attach a written opinion of a similar health care provider that there appears to be evidence of medical negligence. See § 52-190a(a). Because the plaintiff has failed to file such certificate or obtain a written opinion letter, this court lacks personal jurisdiction over the defendant, and, pursuant to § 52-190a(c), the plaintiff’s complaint must be dismissed.
Because the plaintiff’s complaint is dismissed for failure to file a certificate of good faith or obtain the opinion letter of a similar health care provider, the court need not address the issue of whether venue is proper.
CONCLUSION
For the foregoing reasons, the defendant’s motion to dismiss is hereby granted.